Here I want to talk about the emotional component of trials: both the agony and the ecstasy involved in this climactic phase of litigation. These emotions are stirred up in part by the incredible amount of work that needs to get done in the days and weeks leading up to trial, days that are consumed with pre-trial briefs and motions, jury instructions, witness and exhibit lists, re-reading the documents, preparing witnesses, etc. Time and cost considerations seem to go out the window. Whenever I am getting ready for trial, I seem unable to think about anything else. I disappear from family and other obligations.


12 Angry Men

It’s not only the massive amount of preparation that turns litigants and lawyers into emotional wrecks. There is also the confrontation with the stark reality of the case itself, with all of its strengths and weaknesses, that worries you. It’s like facing Judgment Day. Clients start feeling nervous, and at the same time somewhat helpless to control the outcome, like an expectant father. But they might also feel like an expectant mother, because they know this is the moment when they really have to deliver. Both lawyer and client share an awful feeling in the pits of our stomachs that stems from the realization that we are putting everything on the line in the service of our imperfect case, and the knowledge that it may not prove worthy. But we share a sense of excitement as well, because if everything goes well, and we’ve prepared as well as we can, we could also be on the verge of a great moment of triumph.

I start second-guessing myself before the trial even starts: did I analyze the case properly? Am I going to be able to score the points I am hoping to score? Was this case worth the amount of time and effort we expended on it? Is the jury going to understand the evidence and get the message I want to convey?

All of this emotional turmoil, second-guessing, and the realization of facing the moment of truth leads to a lot of settlements on the courthouse steps. But if the case doesn’t settle there, there is still the emotional roller-coaster of the trial itself: the highs of a cross-examination question that hit the mark, the lows of an answer I wasn’t expecting. The parts that didn’t go over as well as I was hoping. The parts that went over better.

Last week I won a very satisfying jury verdict. So naturally I’m thinking, settlement is for suckers. There is no feeling better than winning. Plus my client deserved to win. But I’ve also experienced the other outcome, and it is the pit of despair. And then there are those results in between, where the outcome didn’t seem to change anything, and made everyone question whether the whole exercise was worth it.

Most people enter into litigation without fully considering the impacts of trial, financially, mentally, morally, emotionally and in every other way. They haven’t thought about how they would feel if they won, or how they would feel if they lost. They haven’t thought about how they would feel while they were getting ready for trial, and how they would feel in the middle of it. That makes sense, because most cases are never going to get that far. But people are still looking for vindication when they file or respond to a lawsuit. They want to find out who is in the right and who is in the wrong, but they don’t necessarily want to experience all the feelings of dread and anticipation that are required to obtain that outcome. The problem is that you can’t have one without the other. And people should understand that it’s the rare case where matters of principle really demand you to go through all of that agony and ecstasy to obtain the end result you thought you were looking for.

The point I’m making–that litigants should think through the consequences of trial before they embark on that enterprise–might seem to contradict the conclusion of my prior post, which was that we need more trials to help educate lawyers on what is important in litigation and perhaps reduce the amount of waste that takes place in prior proceedings. Here is how I might reconcile those positions: I think our system leaves most litigants feeling unsatisfied. They are especially unsatisfied when they are told to pay more or accept less than they think is fair because justice simply costs too much. Therefore I think we need to reduce the amount of pre-trial proceedings that stand in the way of trial. That way, more people who need the vindication (or the repudiation) of their positions they get from trial, can obtain that kind of satisfaction. Equally importantly, if we can reduce pre-trial proceedings, then more people are going to settle based on their evaluations of the case and their notions of fairness, rather than because they have been ground down by the high cost of litigation. That should increase satisfaction also.

Ideally, our system should allow you to try your case at reasonable cost. It should also encourage you to resolve your case by negotiated agreement, and that should happen to most cases. What the system should do less is to allow you to litigate your case to the point where you are forced to settle because you can’t afford to litigate any more.


Joe Markowitz has practiced commercial litigation for more than 30 years, both in New York City and Los Angeles, and has served as a mediator for more than fifteen years. He is a member of the Mediation Panels in both the District Court and Bankruptcy Court in the Central District of California. He is currently the president-elect of the Southern California Mediation Association. Website: